8
American conservatives pride themselves on moral clarity. And
that clarity is nowhere greater than on the topic of marriage
and family. The essentials of marriage are, they say, well-defined:
it unites a man and a woman; it provides the foundation for a
family that may include biological or adopted children; it assigns
different roles to men and women; and it is a union for life,
indissoluble except for the most grievous offenses. These essentials
are, according to conservatives, not a product of the vagaries
of social convention or contingent cultural choices but are instead
given by nature, scripture, or tradition. Moreover, preserving
them is intrinsically good for individuals and has great public
benefits: marriage is the foundation of society, and a strong
foundation will protect against societys ills, from crime
to poverty.

For the past decade conservatives have worked
energetically to implement this visionmore precisely, to
restore it in the face of the demographic, economic, and cultural
changes of the past 40 years. They have defended two-parent marriage
by requiring (in the 1996 Welfare Reform Act) that single parents
who receive welfare must work outside the home for wages, while
allowing one parent in a two-parent family that receives welfare
to stay home to take care of children. They supported President
George W. Bushs marriage initiative, which allocates
federal funds to programs aimed at persuading unwed parents to
marry, by rewarding, for example, a single mother who marries
her childs father. And they have opposed efforts to legalize
same-sex marriage in individual states and praised the federal
Defense of Marriage Act (DOMA), which exempts states from recognizing
same-sex marriages entered into in other states. The Catholic
bishops of Massachusetts, for example, have recently been pressing
the state legislature to pass a constitutional amendment against
same-sex marriage: such marriages will, they say, have devastating
consequences. And Ken Connor, president of the conservative
Family Research Council, has promised to make a big, big
issue in 2004 out of the idea that marriage is a sacred
covenant, limited to a man and a woman.

Critics argue that these efforts to shore
up the traditional family represent an assault on 30 years of
sensible reforms of marriage and divorce law that have helped
to free women and men from stultifying or abusive relationships;
that they threaten to reimpose oppressive gender roles; that they
stigmatize and disadvantage unwed mothers and their children;
and that they condemn gay men and lesbians to second-class citizenship.
In short, the conservative program is characterized as the enemy
of equality and a threat to personal liberty.

But these critics have been less clear about
their own constructive moral and political vision. One response
to the conservative project has been to concentrate on efforts
to legalize gay and lesbian marriage by reforming state marriage
laws. This strategy is attractive and shows some promise in a
few states, but even if it succeeds it leaves other elements of
the conservative project untouched. It does nothing to address
the concerns of those who regard marriage itself as oppressive,
to remedy the poverty that deters some people from marrying, or
to support single parents and their children.

A second, more comprehensive proposalput
forward by, among others, Lenore Weitzman in The Marriage Contract
and Martha Fineman in The Neutered Motheris to
abolish state-defined marriage altogether and replace it with
individual contracts drawn up by each couple wishing to marry.
A regime of individual contract would allow spouses to decide
for themselves how to arrange their lives, and it would enable
people of the same sex, or more than two persons, to marry. On
this view, which I will call contractualism, the best way to treat
citizens as free and equal adults is to stop treating marriage
as a special public status, and permit the parties themselves
to define its terms and conditions.

Contractualism has considerable force, but
it suffers from two deficiencies. First, the contract model treats
persons as rational and bounded individuals while paying insufficient
attention to the mutual need and dependence that arise in marriage
and other close relationships. It thus rests on an incomplete
view of the person and fails to take account of the ideal of marriage
as a relationship that transcends the individual lives of the
partners. That ideal has deep cultural resonance, and contractualism
unnecessarily concedes this ground to conservatives. Second, while
emphasizing the need for liberty in the choice of partners, contractualism
fails to give sufficient weight to positive state action to enhance
equality and equal opportunity along with liberty and freedom
of association. It thus is founded on too narrow a conception
of justice.

A third line of response, then, would preserve
the idea that a married couple is something more than its separate
members, and that spouses can make claims in the name of their
relationship that are not identical to claims that each could
make as individuals. But it would also open up marriage so that
both women and men, regardless of race, class, or sexual orientation,
can, as equals, assume the responsibilities and reap the rewards
of family life. I will call this the equal status view. Its defining
aspiration is to preserve the idea that marriage is a special
bond and public status while rejectingas incompatible with
liberty and equalityimportant elements of the traditional
view of the purpose and proper ordering of marriage.

Can marriage be reformed to serve as a public
status that promotes equality and liberty? Is the happy combination
of justice and committed intimacy and love suggested by the equal
status view a real possibility?

I. From Fixed Status to No-Fault

The traditional view of marriage
in the United States has roots in Christian religious views and
church law. The English common law, which provided the basis for
the marriage laws of most U.S. states, reflected the tenets of
marriage promulgated by the Anglican (and before it the Catholic)
Church. When jurisdiction over marriage and children was transferred
from church to common-law courts, for the most part public law
simply incorporated aspects of church doctrine.1

The Traditional View

In the Churchs view marriage was first
and foremost a covenant, like Gods covenant with the Jews
and Christs covenant with the church (the community of the
faithful). Christian marriage was thus an unbreakable bond (for
Catholics, a sacrament). Marriage was to be lifelong and marital
faithfulness was to include monogamy.

Marriage was also regarded as a hierarchical
relationship in which husband and wife played complementary roles.
The man was given authority as head of household. Blackstone,
the 18th-century legal authority, explained that since Genesis
declared husband and wife to be one flesh in the eyes
of God, they were to be one person in the eyes of
the law, and that person was represented by the husband. This
suspension of the wifes legal personality was known as the
doctrine of spousal unity or coverture. Under coverture
a married woman could not sue or be sued unless her husband was
party to the suit, could not sign contracts unless her husband
joined her, and could not make a valid will unless he consented
to its provisions. As a correlate to these powers and his role
as head of the family, a husband was obligated to support his
wife and children. And since he would be held responsible for
her actions, a husband had a right to correct his wife physically
and to determine how and where their children would be raised.
As late as 1945 a New Jersey court wrote:

The plaintiff [husband]
is the master of his household. He is the managing head, with
control and power to preserve the family relation, to protect
its members and to guide their conduct. He has the obligation
and responsibility of supporting, maintaining and protecting the
family and the correlative right to exclude intruders and unwanted
visitors from the home despite the whims of the wife.2

Marriage was to be a structure in which
the roles of the spouses were distinct and complementary: the
wage earner and the housewife, the protector and the protected,
the independent and the dependent.

The husband was expected to govern his household
with neither interference nor help from the state. By and large,
police turned a blind eye to violence between spouses. In most
jurisdictions wives could not prosecute their husbands for marital
rape because the law assumed that by marrying, spouses gave blanket
consent to sexual relations (they were, after all, one body
and one person in law). And judges enforced obligations
of support only if spouses separated, not in an ongoing marriage.

When people married, then, they consented
to enter a relationship whose terms were set by the state. Of
course, consent was necessary to enter the married state, but
the agreement to marry brought with it rights and duties that
were not set by the partners but were treated as intrinsic to
the status of being married.

The First Wave of Reform

The unequal provisions of marriage law became
the object of reform efforts in the mid-19th century. Reformers
were critical, for example, of the fact that many states granted
divorce only for a wifes adultery and not a husbands.
Moreover, adultery was in many states the only grounds
for divorce, and some men and women began to insist that other
wrongs, particularly physical cruelty and domestic violence, were
significant offenses against the marriage that justified dissolving
the marital bond. To forbid divorce in such instances, they said,
was to make the home a prison for unhappy and wronged
spouses, depriving them of essential personal liberty.

Feminist reformers also challenged coverture
by invoking equality. They organized campaigns in a series of
states to pass laws which would allow wives to hold property,
sue and be sued, and enter contracts in their own names. By the
end of the 19th century, many states had passed married womens
property statutes, freeing married women from many of the legal
effects of coverture.

While this first wave of marriage-law reform
increased both the freedom to leave unsatisfactory marriages and
equality between husbands and wives, dissatisfaction with marriage
law remained. The grounds for divorce remained restrictive: thus,
several states granted divorce only for adultery. And law still
treated married men and women differently: for example, many states
imposed alimony only on husbands, a stipulation that assumed,
and perhaps helped to perpetuate, womens exclusion from
the paid labor force. The age at which females could marry without
their parents consent was often younger than that for males,
suggesting that boys needed to stay in school or learn a trade
before marrying and that girls did not. Custody laws varied widely,
but often contained a preference for mothers custody, again
assuming that the mother was and would in the future be the better
caregiver.

The Second Wave of Reform

In the mid-20th century a variety of factors
(which I can only briefly allude to here) converged to spark a
second wave of marriage-law reform. Demographic changes after
1900 were dramatic. Life expectancy for women was 51 years in
1900 and 74 in 1960; increased life expectancy meant that most
parents had years together in an empty nest after
their children had left home; at mid-century women began childbearing
at a later age and bore fewer children than in 1900. In addition,
economic changes in the decades following World War II led women,
including married women and women with children, into the paid
labor force in unprecedented numbers. This drew women out of the
home for part of the day and gave them greater economic independence.
The introduction of the birth control pill in the 1960s gave women
more control over pregnancy, and the ability to plan the timing
of their children encouraged women to work outside the home and
to think of careers rather than temporary jobs.

These and related changes provoked a dramatic
transformation of divorce law between 1965 and 1974. Herbert Jacob
has called the adoption of no-fault divorce the silent revolution:
revolution because it involved a series of radical changes
in legal expectations about family life; silent because
the changes resulted from routine policy processes
that never became the focus of media and public attention.

In the mid-1960s, lawyers in California
began the push for no-fault divorce in large part to get rid of
the subterfuge in many divorce proceedings that took place when
couples tailored their stories to make them fit the legal requirements
for divorce. Although California courts were lenient in granting
divorce, in order to obtain a divorce a husband or wife had to
prove that the other had committed an offense such as adultery,
cruelty, willful neglect, habitual intemperance, or desertion.
In most cases the wife was the plaintiff, and she usually charged
her husband with cruelty, which could range from disparaging
remarks to physical violence. The charges were often fabricated
and the testimony rehearsed, the couple having decided to end
the marriage. The dishonesty, even perjury, that pervaded some
divorce proceedings prompted activists to press the legislature
to adopt a no-fault divorce law, which enabled a spouse to obtain
a divorce without proving wrongdoing by the other.

No-fault divorce emerged prior to modern
feminism, and its proponents did not aim to promote greater equality
for women or greater choice among alternative family forms. Nor
did they intend or anticipate the demographic watershed in U.S.
families that resulted from no-fault divorce. In the wake of no-fault
legislation the divorce rate rose dramatically, from 2.2 per thousand
population in 1960 to 4.8 per thousand population in 1975. And
by the last quarter of the 20th century only one-fourth of U.S.
households fit the supposed norm of a wage-earning
husband and homemaker wife living with children.

Alongside its dramatic demographic consequences,
no-fault divorce prompted a sea change in conventional understandings
of marriage. The idea that marriage partners themselves could
simply decide to end their marriage was revolutionary; it affected
thinking about the very nature of marriage and its permanence.
The observation by 19th-century legal historian Henry Maine that
the movement of the law in the 19th century was a movement
from status to contract was finally coming to be true of
marriage.

Although no-fault divorce preceded the resurgence
of feminism, the idea that individuals should be able to extricate
themselves from unhappy marriages resonated with feminist ideas
about womens liberty and equalityand later with the
movement by gays and lesbians to end legal discrimination against
homosexuals and the ban on same-sex marriage. The conjunction
of no-fault divorce, renewed attention to equality, and gay liberation,
as Nancy Cott observed, sparked proposals to reinvent marriage
by extend[ing] its founding principle of consent between
the couple to all the terms of the relationship, allowing the
contractual side of the hybrid institution to bloom. If
personal choice suffices to end a marriage, why, the contractualist
asks, shouldnt personal choice define the terms of marriage
right from the outset?

II. A Third Wave of Reform?

Marriage
and Liberty

Liberty, the first foundational value of
a liberal polity, is central to the question of who is allowed
to marry. When the law stipulates who may and may not marry, it
restricts the freedom of those excluded from marriage. Some exclusions
are relatively uncontroversial, such as prohibiting marriage below
a certain age, with a close relative, or while in prison (although
each of these has been attacked as an unjustifiable limitation
on individual freedom). Other restrictions are more contentious.
Law precluded slaves from marrying. And only in 1967, in the case
of Loving v. Virginia, did the Supreme Court decide that
anti-miscegenation laws were unconstitutional.

Advocates of contract marriage favor legal
recognition of same-sex marriage, a position consistent with their
dedication to individual liberty. When marriage is a public status,
they say, law inevitably draws a line separating those who may
marry and those who may not. The repeated refusal by states to
formalize unions of same-sex couples represents, according to
the contractualists, a failure to take pluralism, privacy, and
personal choice seriously. States, of course, may enforce agreements
between marriage partners, just as states enforce other contracts;
and they may prohibit marriages below a certain age, as they impose
age restrictions on other contracts. But states may not legitimately
decide who may marry whom or how spouses should order the personal
and material aspects of their relationship.

I might be tempted to become a contractarian
if contract marriage were the only way to achieve legal recognition
for same-sex marriage, butas current political initiatives
at the state level underscoreit is not. Marriage for same-sex
couples can be achieved by either legislation or court decisions
that change the content of marriage law; it does not require us
to replace a regime of marriage law with a regime of private contract.
The fact that many municipalities have adopted domestic
partnerships and that Vermont has recognized civil
unions may be a harbinger of legislative victories to come.
And courts may someday decide that there is a constitutionally
protected right to marry that encompasses same-sex couples. The
ground was laid in Loving v. Virginia when the Supreme
Court declared The freedom to marry has long been recognized
as one of the vital personal rights essential to the orderly pursuit
of happiness by free men. Marriage is one of the basic civil rights
of man, fundamental to our very existence and survival.
If marriage is a fundamental liberty protected by the 14th Amendments
due-process clause, then any restriction on marriage must be tailored
to advance a compelling state interest. And while some religious
views may condemn homosexual unions, no state interest rises to
a sufficiently compelling level to justify prohibiting same-sex
marriage.

The debate here is not for and against same-sex
marriage, but between contractualists who would provide legal
recognition of same-sex marriage by abolishing marriage law and
those who would instead alter marriage law itself. Is there any
reason to prefer the latter? I think there is.

The individualism and emphasis on rational
bargaining that are at the heart of contracts rest on misleading
models of the person and of the marriage relationship. Marriage
partners are not only autonomous decision-makers; they are fundamentally
social beings who will inevitably experience need, change, and
dependency in the course of their lives. The prenuptial agreements
that set forth how economic assets each partner brings to the
marriage are to be held and distributed recognize the individuality
of the partners, although they strike some people as unromantic.
But the question of who should have a claim to property obtained
by either spouse during the course of the marriage is more problematic,
because when people marry they become part of an entity that is
not always reducible to its individual components. Some states
hold all such property to be held in common (community property),
reflecting the notion that marriage creates a single entity and
a shared fate (and hence shared resources) for marriage partners.
Other states give title to the person who earned or otherwise
obtained the property, but allow title to be overridden in the
interests of a fair distribution at the time of divorce, reflecting
a belief that marriage creates claims growing out of a shared
life. The relational entity is also reflected in common language
when spouses say they are doing something for the sake of
the marriage, such as choosing a place to live that would
be neither partners first choice if single. It is reflected
in legal practice when one spouse is prohibited from testifying
against the other in certain proceedings because the law wants
to express the notion that the marriage relationship itself should
be protected.

Married life is not only deeply relational,
but it is also unpredictable. Not all of what spouses may properly
expect of one another can be stipulated in advance. Contracts
are useful devices for facilitating communication about each partners
expectations and aspirations. But contracts create obligations
by volition and agreement; they do not account well for the obligations
that may arise from unforeseen circumstances, including illness
or disability of an aging parent, a spouse, or a child.

Finally, contract suggests that each marriage
is a particular agreement between individuals, not a relationship
in which the public has a legitimate interest. But the public
does have an interest in the terms of marriage. It has, as the
equal status view argues, an interest in promoting equality of
husband and wife, both as spouses and as citizens, and in securing
what Martha Nussbaum calls the social bases of liberty and self-respect
for all family members.3
And it has an interest in sustaining marital and other family
relationships in the face of poverty or illness.

One way to think about the differences in
these two approaches is to consider whether polygamy should be
legalized in the United States. As Boston Globe columnist
Jeff Jacoby asks, If the state has no right to deny a marriage
license to would-be spouses of the same sex, on what reasonable
grounds could it deny a marriage to would-be spouses . . .
who happen to number three or four instead of two? Would
a continuation of the ban on plural marriage simply shift the
boundary between whos in and whos out?

For contractualists, the case for a right
to plural marriage is straightforward: it expresses individuals
rights to form affective and sexual relationships free from state
interference. Martha Fineman said in 2001 that if no form
of sexual affiliation is state preferred, subsidized, and protected,
none could or should be prohibited. Same-sex partners and others
forming a variety of other sexual arrangements would simply be
viewed as equivalent forms of privately preferred sexual connection.
The law would have to be gender-neutral, allowing marriages with
plural husbands as well as plural wives. But as long as protections
against coercion, fraud, and other abuses that invalidate any
contract were enforced, people could choose multiple marriage
partners.

Proponents of the equal status conception
fall on both sides of the question. Laurence Tribe, supporting
legal recognition of polygamy, asks rhetorically in American
Constitutional Law whether the goal of preserving monogamous
marriage is sufficiently compelling, and the refusal to
exempt Mormons sufficiently crucial to the goals attainment,
to warrant the resulting burden on religious conscience.
Peggy Cooper Davis condemns in Neglected Stories the cultural
myopia that led the Supreme Court to outlaw Mormon polygamy
in Reynolds v. United States in 1879, and argues that a
principled objection to polygamy in a multicultural society would
require more than a political majoritys wish to define
and freeze the moral character of the polity. But the flaws
in the Reynolds decision do not mean polygamy should be
legalized. Many people are convinced that polygamy is profoundly
patriarchal. The larger cultural context of female subordination
is too deeply rooted and strong even for gender-neutral principles
that allow both women and men to have more than one spouse to
overcome its effects. In this view, plural marriage reinforces
female subordination and is unacceptable on grounds of equality.

The answer to the question, If we
legalize same-sex marriage, wont we have to legalize plural
marriage? is not, then, an obvious yes. Equality
as well as liberty is implicated in marriage law and policy. In
assuming the equal agency of the parties to the contract, the
contract model leaves aside the question of whether choices themselves
may lead to subordination. In order to decide whether plural marriage
should be legalized, one must address the question of whether
polygamy can be reformed along egalitarian lines. Equality must
be a central attribute of any marital regime based on considerations
of justice.

Marriage and Equality

Most
people today endorse equality as a general cultural
value, but there is deep disagreement about what kind of spousal
equality we want and how best to achieve it. Advocates of gay
and lesbian marriage who are concerned principally with restrictive
rules about who may marry whom typically do not engage this issue.
But a vision of the proper relationship between spouses is central
to the conservative project; a compelling alternative to it will
require its own core vision.

Under 19th-century marriage law the fact
that a wifes legal personality was subsumed in that of her
husband, that she was not able to vote, and that she was excluded
from many occupations was regarded by many not as inequality but
as complementary difference. Today some traditionalists contend
that although men and women, husbands and wives should enjoy equal
rights both in marriage and as citizens, they have different roles
to play in family and civil society. For example, Chad Brand explains
the Southern Baptist Conventions position that while
the Bible teaches equality, it does not affirm egalitarianism
or interchangeability in all things. He contends that male-female
equality and male headship may seem paradoxical, but they are
both taught in Scripture, much like a thread of two strands.4
In a secular vein William Kristol asserts that women and men must
be taught to grasp the following three points: the necessity
of marriage, the importance of good morals, and the necessity
of inequality within marriage.5
Because the nation needs strong and even aggressive men to flourish,
the price women pay for marriage and morals is submission to the
husband as leader within the family.

Angered by the endorsement of male dominance
in these views, advocates of contract marriage such as Martha
Fineman argue that abolishing marriage as a legal category
is a step necessary for gender equality. Marriage by contract
replaces the gender stereotyping and protectionism of traditional
marriage law with the recognition of the individuality and equal
agency of the partners. Marriage partners should be treated as
rational actors capable of knowing and articulating their interests.
Contract reflects autonomy and self-direction in general, and
marriage partners are individuals who, according to the American
Law Institutes Principles of the Law of Family Dissolution,
need to accommodate their particular needs and circumstances
by contractually altering or confirming the legal rights and obligations
that would otherwise arise.6

Supporters of contract marriage are right
to reject male dominance and state protectionism. But as Carole
Pateman argued in The Sexual Contract, while contract may
be the enemy of status it alone is not adequate to defeat the
legacy of patriarchy. The contract model is an insufficient foundation
for spousal equality. Ensuring conditions of fair contracts is
not in itself enough to establish this kind of equality in marriage
and in civic life. Instead, marriage law and public policy must
work to ensure that neither partner is precluded from participating
in social and political life or rendered unable to provide care
to family members. Vigorous state action is needed to promote
spousal equality, and one important justification for such action
is provided by vision of marriage as a relationship between equals
that enriches both their individual and joint lives. While marriage
and divorce laws themselves are now usually drafted in gender-neutral
terms, cultural norms and employment practices perpetuate a division
of labor at work and at home that results in a system of gender
and racial hierarchy. So even if reforms are animated by concerns
about joining domestic equality with special respect for marital
bonds, those reforms will need to focus on the labor market as
much as the domestic arena.

Most jobs, whether professional or nonprofessional,
still assume the model of what Joan Williams in Unbending Gender
calls the ideal worker, a full-time, paid employee
married to an at-home caregiver. Employment practices in the United
States developed around the sexual division of labor. Jobs were
designated male or female, and mens
jobs tended to pay higher wages than womens. Different pay
scales applied to men and women doing the same work (men being
presumed to be the family provider, women to be working for pin
money). Health, unemployment, and other benefits were tied
to full-time work. The workday and workweek were based on the
assumption that someone else was cleaning, cooking, and caring
for family members. The ideal worker model had enormous influence
on both the economic resources and caregiving skills of men and
women.

Although discrimination against women in
the workplace has diminished, the ideal worker model continues
to affect both decisions to marry and the dynamics within marriage.
As Susan Okin argues in Justice, Gender, and the Family,
the difference in wage earning capacity between men and women
gives men more resources with which to deal with the world, and
this in turn affects dynamics within the family. The disparity
still remains despite a narrowing wage differential between men
and women of all races: while women in 1979 earned 62.5 cents
for every dollar men earned, in 1998 they earned 76 cents. Because
uninterrupted time in the work force increases ones potential
earning power, wives who stay out of the paid labor force for
a number of years fall behind. This diminishes their decision-making
authority within marriage and their options to leave an unsatisfactory
union.

The arrangement of the workplace also affects
decisions about caregiving, for children as well as elderly or
sick relatives. Because benefits such as health insurance may
depend on full-time work, and because the pay scale is often higher
for full-time work, one partner may have to work full-time. Because
many jobs are sex-segregated and wages for mens jobs are
higher than those for womens, it will make economic sense
in some families for the husband to work full-time and his wife
to do the caregiving. The division between workers
and caregivers not only harms women in the workplace
but makes it less likely that men will develop interpersonal and
caregiving skills.

In the Supreme Courts recent decision
upholding the right of a man denied family leave to take care
of his sick wife to sue the State of Nevada under the Family and
Medical Leave Act, Justice Rehnquist noted the effects on both
home and workplace of the assumption that women caregivers free
men to be ideal workers.

Because employers continued to
regard the family as the womens domain, they often denied
men similar accommodations or discouraged them from taking leave.
These mutually reinforcing stereotypes created a self-fulfilling
cycle of discrimination that forced women to continue to assume
the role of primary caregiver, and fostered employers stereotypical
views about womens commitment to work and their value as
employees. [Nevada Department of Human Resources v. Hibbs,
No. 01-1368, decided May 27, 2003.]

Congress acted reasonably, Justice Rehnquist
ruled, in mandating a family leave that would be help to break
these stereotypes about male and female social roles.The tight
linkage between work and family is influenced not only by gender
but also by race and class.

Racial prejudice meant that historically
fewer Black than white families had an ideal worker
and stay-at-home caregiver. The economic need created by racial
discrimination meant that the labor force participation of married
Black women was always higher than that of white women. Black
men were relegated disproportionately to agricultural and other
low-paid labor, Black women to domestic and other service jobs.
Since the last decade of the 20th century the high unemployment
rate among Black males has had an additional impact on family
life, as marriage rates have fallen: William Julius Wilson, Orlando
Patterson, and others have argued that some people wont
marry when they have no reasonable hope of being able to support
a family.7

As to social class, the increasing number
of never-married mothers living in poverty led authors of the
Welfare Reform Act of 1996 (the Personal Responsibility and Work
Opportunity Act) to insert a provision requiring mothers who receive
welfare to identify the biological fathers of their children.
The state could then go after the father for child support, and
if he did not provide enough money to lift mother and child out
of poverty, the mother was required to work outside the home.
Sponsors hoped that if the woman identified the father the state
might induce them to marry. Even if they did not marry, the man
and not the government would support the child. Many women eligible
for welfare, however, did not want to identify the fathers of
their children, some because they preferred to parent with someone
else or alone, some because they feared abuse from the father,
and some because they knew the father had no money (and often
no job).

Marriage is not an effective anti-poverty
program, nor is it appropriate to use it as such. Unemployment
rates are high because the number of jobs that pay a living wage
are far below the number of unemployed seeking work. The wages
available to many men who can find work are inadequate to support
a family, and adding a wifes wages is of little help unless
affordable childcare is available. Addressing womens poverty
by attaching them to men who can support them reproduces inequality
and vulnerability within marriage. Inducing women to marry men
may expose them and their children to domestic violence while
failing to provide them with either the personal or community
resources to extricate themselves from intolerable living conditions.

The understanding of marriage as a contract
does not by itself generate the reforms necessary to alter family
and workplace structures, welfare, and social services in ways
necessary to give both men and women the opportunity to engage
in both public and caregiving work. The next phase of the struggle
to achieve sexual and spousal equality must entail a public commitment
to liberty and equality and tackle not only marriage law but economic
circumstances as well.

A number of reforms would move society toward
greater justice in marriage. One such reform would be to ensure
that people can find jobs that pay a living wage. There must be
equal pay for equal work, whether performed by full- or part-time
employees. Benefits must be extended to all workers, not just
those who meet the ideal worker model (and basic health benefits
should not be tied to employment status). Work must also be restructured
in such a way that it accommodates caregiving, through a shorter
workweek and more flexible scheduling, for example. If caregivers
are not to be marginalized, quality, affordable childcare must
be part of any comprehensive family policy, as must the kind of
child allowance common in European countries. Paid parental leave
for both men and women would create an incentive for men to participate
in child care, particularly if a father could not transfer his
leave time to someone else but had to use it or forego the benefit.
In the event of divorce the wages of both a primary wage earner
and a primary caregiver should be treated as joint property, reflecting
the commonality of marriage, particularly if there are children
or other dependents.

These measures certainly do not exhaust
the possibilities. They make the point that in order to meet the
principle of spousal equality men and women alike must be able
to perform the tasks necessary to both the public and the private
realm, to shoulder the responsibilities of workers outside the
home as well as family caregivers.

III. Public Status or Individual Contract?

The contractual image has much to be said
for it. It captures what Milton Regan, Jr., in Alone Together
calls the external stance toward marriage, which focuses
on the ways in which marriage serves the interests of distinct
individuals. Contract represents well the role that choice and
negotiation play in any marriage. Drafting a marriage contract
is a useful exercise for a couple because it encourages potential
partners to asses their individual needs and sources of personal
satisfaction, make their expectations explicit, and identify areas
of both agreement and conflict. Legal notions of spousal unity
and the sentimentalization of a womans role as the
angel in the house have often served to undercut married
womens agency and autonomy. The external stance provides
an important antidote.

Contract does less well in capturing what
Regan calls the internal stance toward marriage, which
regards it from within the relationship and focuses on shared
experience rather than lives lived in parallel association. The
internal stance reflects the fact that when people marry they
become part of an entity that is not reducible to or identical
with its individual components. Historically this concept of a
marital entity distinct from either spouse was oppressive to women.
The doctrine that husband and wife were one and formed
a new person in the eyes of the law deprived married
women of their independent right to hold property and enter into
contracts in their own name until the latter half of the 19th
century. Prior to the advent of no-fault divorce in the late 1960s
a court had to find that one of the spouses had committed an offense
against the marriage before granting a divorce. Incompatibility
was not a valid ground for divorce even when both partners wanted
to end their marriage. Even in our own day police may ignore complaints
of domestic violence because they do not want to intrude
on the private realm of the married couple.

Despite this dismal history, the notion
that marriage creates an entity that is not reducible to the individual
spouses captures a truth about significant human relationships
and could be used to reshape social and economic institutions
in desirable ways. This understanding of the marriage relationship
as something distinct from the individuals could be used in the
future not to subordinate women but to press for marriage partners
rights to social and economic supports that sustain family relationships
and enable spouses to provide care to one another. Such a right
to provide care to and receive care from a spouse is not the same
as an individuals right to health care or social services.
Nor does public protection and support for associational and affective
ties need to be limited to marriage partners and parents and children.
Rather, recognition of the inevitability of dependency and the
importance of caregiving should lead people to ask what other
relationships deserve public support.

Marriage suggests, as contract does not,
the role of committed relationships in shaping the self. The promise
to love someone else, in a marriage or in a friendship or in a
community, binds a person to act in ways that will fulfill that
obligation. Contract also does not express the notion of unconditional
commitment, both to the other person and to the relationship.
Contract in lieu of marriage rests upon a notion of quid pro quo,
in which each party offers something and agrees on the terms of
any exchange as a rational bargainer. But the marriage commitment
is unpredictable and open-ended, and the obligations it gives
rise to cannot be fully stated in advance. What love attuned to
the well-being of another may require is by its nature unpredictable.

With so much of our public discourse reducing
individuals primarily to consumers in the market, it is especially
important to insist on the social and relational sides of our
lives. The contractual model for marriage that presents marriage,
as Hendrik Hartog says in Man and Wife in America, as nothing
more than a private choice and as a collection of private practices
is insufficient to the tasks of reconfiguring marriage. Marriage
entails respect for individuals and for their relationships. It
is a particularly striking instance of a practice founded on both
individuality and a shared purpose that transcends the self
(Regan). If such a commitment is a valuable aspiration and one
that our political community wants to facilitate, then we need
to examine and remove impediments to such relationships. Those
impediments are legion, especially among the poor. Removing them
thus confronts us with a formidable agendareforms of the
workplace, of welfare, and of caregiving. But with notions of
the public good and collective responsibility under constant assault,
withdrawing the state from the pursuit of justice in marriage
and family moves in the wrong direction. We need to insist instead
that marriage and family law can and must be made to conform to
the principles of justice that affirm the equality and equal liberty
of all citizens. <

Mary Lyndon Shanley is Margaret Stiles
Halleck Professor of Political Science at Vassar College. She
is author of Making Babies, Making Families; and Feminism,
Marriage, and the Law in Victorian England 18501895.

Notes

1. In Jewish law, marriage
involved a contract (ketubah) in which a man accepted a woman
as his wife in exchange for a bride price, and pledged a specific
amount of money to her if he divorced her. Divorce was only available
to the man. The blessings of the wedding ceremony invoked a more
covenantal relationship, but the contract was essential to marriage.
The Jewish contractual law of marriage was different both from
Christian law, which by-and-large did not permit divorce, and
views of secular contractualists that I examine here.

2.Chapman v. Mitchell,
223 N.J. Misc. 358 at 359-60, 44 A. 2d 392 at 393, quoted in Herbert
Jacob, Silent Revolution: The Transformation of Divorce Law
in the United States (Univ. of Chicago Press, 1988), 6.

6. Quoted in Martha Albertson
Fineman, Marriage and Meaning, in Anita Bernstein,
ed., For and Against Marriage: Strategies to Critique, Reform,
Defend, and Appraise a Venerable Legal Category (forthcoming).
Fineman has written extensively on contract marriage, including
The Neutered Mother, the Sexual Family and Other Twentieth
Century Tragedies (Routledge, 1995).

7. Wilson is right to assert
that ending unemployment is imperative, but decent-paying jobs
for men alone will not foster spousal equality in either Black
or white families. Unless jobs are available for women as well,
and unless both men and women are provided with the means
to combine wage labor and family caregiving, spousal relations
will continue to be hierarchical and unequal. Orlando Patterson
writes in The Ordeal of Integration about conflicts between
Black men and women that have caused the marriage rate among Black
Americans to decline.